Stanislav Prisacari v Tribunal Judiciaire de Paris, France

FORDHAM J: PART 1. PREFACE

1. This judgment was written on two separate occasions, after two separate hearings. I wrote §§2-47 below (Part 2) in April/May 2025. That was after a hearing on 8 April 2025. I was poised to hand it down on 13 June 2025. This is a case about extradition. The requested person is wanted by the French authorities to serve a 20 month prison sentence. But he has spent far more than 20 months on a 5-hour electronically monitored curfew. A Divisional Court judgment called A and a judgment of Farbey J called Doga found it was very clear-cut that the application of the French Code would treat each day of that kind of curfew as time served (§6 below). In my original judgment, I described the evidence (§41 below) and the assessment of the evidence by the Courts in A and Doga (§§42-43 below). I found that the Appellant’s prospects of Qualifying Curfew being time served under the French Code were “so irresistibly strong” on the evidence that it would be an Article 8 violation to extradite him (§47). I decided to follow A and Doga . I also referred to the controversy about a foreign early release discretion (§37 below). Mr Swain for the Respondent had cited to me the judgment of Swift J in the case of Andrysiewicz v Poland [2024] EWHC 1399 (Admin) , in support of a general point about not generally getting involved in contested questions regarding provisions of foreign domestic law. The Divisional Court in A had considered that point, but with a proviso where the position is “very clear cut” (§38 below). I had concluded that this case was very clear cut. My judgment (Part 2) had been circulated in draft on 3 June 2025. I had received and dealt with editorial corrections. Then the Supreme Court handed down judgment in Andrysiewicz [2025] UKSC 23 [2025] 1 WLR 2733 on 11 June 2025, resolving the controversy about a foreign early release discretion (§37 below). In the light of the Supreme Court’s judgment, the Respondent asked me to defer handing down judgment, asking for the chance to persuade me to reverse my decision. I gave them that chance. I will address the Respondent’s request in Part 3. But first, I will set out (Part 2) my original judgment. For complete transparency, I have left it untouched. The parts of this judgment that have been written later (October 2025) are §1 (Part 1) and §§48-59 (Part 3). PART 2. THE ORIGINAL JUDGMENT Introduction

2. This is an extradition case about Qualifying Curfew under the domestic law of France as the issuing judicial authority (IJA), and its relevance to the responsibilities of the UK court as executing judicial authority (EJA). By “Qualifying Curfew”, I mean a restriction of liberty whose effect in the French domestic law is to reduce the term of imprisonment which a requested person would be required to serve. By the “responsibilities” of the EJA, I mean the functions of deciding whether extradition would violate Article 8 ECHR or constitute an abuse of process. This is previously-trodden ground. My judgment is the third in a line of extradition cases about French Qualifying Curfew. The previous two cases are A v France [2022] EWHC 3214 (Admin) (Stuart-Smith LJ and Jay J, 20.12.22) and Doga v France [2023] EWHC 2561 (Admin) (Farbey J, 3.10.23). In both A and Doga , the requested person was discharged from extradition by this Court as EJA, because the period of electronically-monitored curfew (EMC) in the UK exceeded the length of the French prison sentence which was the subject of France’s extradition request. I have to decide whether the same outcome follows in the present case. Qualifying Curfew in UK and French Domestic Law

3. When sentences are imposed by UK criminal courts, a mandatory Qualifying Curfew arises pursuant to s.240 A of the Criminal Justice Act 2003 and s.325 of the Sentencing Act 2020 . By operation of the statute, each day of mandatory Qualifying Curfew counts as half a day of time served. The UK domestic statutory definition of mandatory Qualifying Curfew is an EMC of 9 hours or more per day. In our domestic law there is also a sentencing judge’s discretion to take into account an EMC of less than 9 hours per day when passing sentence: see R v Whitehouse [2019] EWCA Crim 970 [2019] 2 Cr App R (S) 48 at §17.

4. In French domestic law, a Qualifying Curfew arises under Article 142-11 of the French Code of Criminal Procedure, when read with Article 716-4: see §21 and 29 below. The question under the French Code is whether the restriction of liberty constitutes “electronically monitored house arrest” (EMHA). If it does, each day spent on EMHA counts as a day of time served. Whether it does, is a question of evaluative judgment. The Respondent has reiterated, as did the French Ministry of Justice in Doga (see §16), that this evaluative judgment is a “discretion” which is “unfettered”, belonging to a French trial judge. On 17 March 2021 the French Supreme Court (Cour de Cassation Criminal Division) published a judgment on an appeal from the Court of Appeal, in test cases where UK EMC had been treated as EMHA under the Code. That French Supreme Court judgment was provided to the Divisional Court in A (see §§11 and 32) and addressed by the French Ministry of Justice in Doga (see §16). Four Components

5. I have found it helpful to keep in mind the following four distinct components to the idea of Qualifying Curfew being applied under French domestic law to a requested person whose extradition is sought. First, there is a who component. This is about who decides whether the deduction as time-served falls to be made in the individual case. The answer is that it is the French decision-makers; ultimately the French courts. Secondly, there is a when component. This is about the point in time at which the decision-maker decides whether the deduction as time-served falls to be made in the individual case. The answer is that this is after the extradition has taken place and the requested person is in France. Thirdly, there is a what component. This about what criteria are applied, when the decision-maker comes to decide whether a deduction as time-served should be made. The answer is that the French decision-maker asks whether the EMC constitutes EMHA. Fourthly, there is a whether component. This is about the prospect that the relevant decision-maker at the relevant time applying the relevant criteria will make a favourable decision and make a deduction as time served. A and Doga

6. In A , the requested person had been on a 5½ hour (then a 4 hour) EMC for 1,521 days; and his French prison sentence was 1,360 days (3y 8m 22d): see A at §§7-8. The Divisional Court ordered his discharge, in the light of evidence about the Qualifying Curfew in the French Code, because extradition would be disproportionate, and also an abuse or process: see A at §49. In Doga , the requested person had been on a 5 hour EMC for 34m 16d; and his French prison sentence was 18m: see Doga at §§1, 4. Farbey J ordered his discharge, in the light of A and evidence about the Qualifying Curfew in the French Code, because extradition would be disproportionate, and also an abuse or process: see Doga at §§34-35. Each Court concluded on the evidence that the requested person would fall to be credited with the period on EMC as Qualifying Curfew: A §§40-42, 49; Doga at §33. In each case, previous adverse appeal decisions were reopened to avoid real injustice (Crim PR 50.27). Expert Evidence and the Chance to Respond

7. The hearing in A was on 6 December 2022. The requested person relied on statements from a first French lawyer (M Thibaut Kempf) dated 25 July 2022 and a second French lawyer (M Etienne Arnaud) filed on 2 December 2022: see A at §§9, 18. The IJA’s position was that the French court had exclusive competence to consider whether to make a deduction for Qualifying Curfew and it was not open to the UK extradition court to consider whether – by reference to Qualifying Curfew under the French Code – the requested person had “served his sentence” (§§21, 23, 40). That argument failed (at §40). Reference was made in A (at §19iv and vi) to a case at Westminster Magistrates Court called France v Miller . In Miller the requested person had relied on a report of a French lawyer (M Philippe Pejoine) dated 5 February 2020 ( A at §19vi). Reference was made to the French Supreme Court’s judgment of 17 March 2021 ( A at §§11 and 32). The hearing in Doga was on 3 October 2023 and the requested person relied on a report from the French lawyer (M Arnaud) dated 4 July 2023 ( Doga §9). There was no “reasoned opposition to M Arnaud’s evidence” ( Doga §33). In the present appeal, the Appellant relied on A and Doga and the substantive content of the materials discussed in those judgments.

8. The substantive hearing was fixed on 4 December 2024, for 8 April 2025. The Respondent’s skeleton argument (31 March 2025) included the submission that the appeal could not succeed without case-specific expert evidence. On 1 April 2025 the Respondent filed and served two documents discussed in A and Doga (§17 below). On 2 April 2025 the Appellant filed an application to adduce fresh evidence, accompanied by a 3-page legal opinion of a French lawyer (Marie D’Harcourt). On 3 April 2025 the CPS (Darren Watts) emailed the Court and the Appellant’s representatives recording that the Respondent was “neutral” as to that application. My pre-reading day was 7 April 2025. The hearing commenced at 1030 on 8 April 2025.

9. At the start of the substantive hearing (8 April 2025) Mr Swain told the Court that the Respondent had now decided, late the previous afternoon, that it wished to have an opportunity to file a written response to Mme D’Harcourt’s legal opinion. Mr Swain’s primary application was for an adjournment, with a fresh date to be fixed. I dismissed that application. I took the view that it had come far too late. I was not prepared to lose the allocation of court time, which had been provided to the parties for oral submissions in the case. I said I would defer consideration of whether to allow a period to file a written response, to which the Appellant could reply. I then heard all the arguments on the issues and materials.

10. Having heard the arguments, I decided to allow the Respondent four weeks (to 6 May 2025) for a response to Mme D’Harcourt’s legal opinion; and two weeks (to 20 May 2025) for the Appellant to reply. I said I would then consider, in light of any accompanying submissions, whether to reconvene for any further oral argument. I was conscious that both parties could have filed case-specific evidence at earlier stages. Although Ms Grudzinska’s primary submission was that the appeal should succeed even without Mme D’Harcourt’s evidence, the facts were that Mme D’Harcourt’s evidence was being relied on (albeit in the alternative) and it had come very late in the day. It would be unfair to shut out any response, notwithstanding the lateness of the Respondent’s request. I was satisfied that the deferral and directions were necessary in the interests of justice and the public interest. Further Information and a Reply

11. On 6 May 2025 the Respondent filed further information dated 24 April 2025, from the Public Prosecutor’s Office in Paris, duly translated for this Court. That document in turn referred to the further information from the French Ministry of Justice dated 28 March 2023. That March 2023 document had been filed and discussed in Doga (see Doga §16). It had already been served in this case on 1 April 2025. But it was requested by the Appellant’s representatives and provided again on 7 May 2025. The Respondent’s brief email submission was that the April 2025 further information was “clear” and that it “undermines” Mme D’Harcourt’s legal opinion. The April 2025 further information explained the Respondent’s position, that Mme D’Harcourt’s legal opinion “seems to us to have to be rejected”, and that the Appellant’s extradition “seems to us … to be necessary”. The April 2025 further information recognised that its reasoning was “set[] out in even greater detail” in the March 2023 document from the French Ministry of Justice. The Respondent made clear that it was not asking for any further oral hearing. The Appellant’s lawyers filed written submissions in reply on 19 May 2025. They did not seek a further oral hearing either. In circumstances where both parties were content that I should proceed to decide the case without any further hearing, that is what I have decided to do. I agree with them that no further hearing was necessary. Each party’s position is very clear and I am grateful for the assistance they have provided. Background

12. The Appellant is aged 27. He is a dual-national of Moldova and Romania, born in Moldova. He is wanted for extradition to France in conjunction with an Extradition Arrest Warrant (“ExAW”) issued on 16 July 2022. It replaced an earlier ExAW issued on 16 March 2022. The offences with which extradition is concerned are 7 thefts which took place in August 2020. They involved hacking into bank ATMs, as a member of an organised criminal group. The banks lost €40,000. The Appellant was sentenced on 18 February 2022 to 20 month imprisonment. Subject to the issue about Qualifying Curfew under French law, the 20 month sentence remains to be served in full. The Appellant’s arrest in conjunction with his extradition was on 16 April 2022. His extradition is governed by the Extradition Act 2003 and the Trade and Cooperation Agreement 2020 (“TCA”).

13. Since 16 April 2022, the Appellant has been on bail with a 5 hour EMC, to be at his home each night between 11pm to 4am, together with reporting requirements. These are the Appellant’s bail conditions: to live and sleep each night at his home address; to abide by an electronically monitored curfew between the hours of 11pm and 4am; to report every Saturday to Weston Favell Police Station between 3pm and 5pm; that identity documents be retained by the police; not to apply for, or be in possession of, any international travel documents; not to attend any international travel hub; not to leave the jurisdiction of England & Wales; pre-release security of £5,000 to be paid to the court; and that a mobile telephone (number given) to be kept fully charged and switched on 24 hours a day. That 5hr EMC has now been in place for 3y 2m. On 16 February 2024 the point in time was reached that it had been in place for the 20m to which the Appellant was sentenced by the French court.

14. Extradition was ordered by DJ Pilling (“the Judge”) on 16 June 2023. That was after an oral hearing on 26 May 2023 at which the Appellant, his then partner, and his father all gave oral evidence. The Judge found the following as facts. The Appellant has been living in the UK since coming here in 2016 (aged 18). His parents and brother have been here since 2018. He had a partner; but they had no children. The Appellant was not a fugitive. He had no other convictions in any country.

15. At the date of the hearing before the Judge (16 June 2023) the Appellant’s EMC had run for 14 months. The case of A had been decided in December 2022. The Qualifying Curfew point did not feature at all before the Judge. Nor did it feature in the Perfected Grounds of Appeal to this Court on 5 July 2023. That is unsurprising, given that the sentence is 20m. A number of other grounds of resistance to extradition were raised before the Judge and in the Perfected Grounds of Appeal. They included abuse of process (given the existence of previous ExAWs) and Article 8 (give the impact and implications of extradition for private and family life). The Judge rejected all of the arguments raised on the Appellant’s behalf. She found no Article 8 disproportionality; and no abuse of process.

16. Permission to appeal was refused on the papers by Julian Knowles J on 30 April 2024. It was only after that point, in the grounds for the renewed application for permission to appeal (dated 6 May 2024) that the Appellant’s lawyers first raised the EMC as a basis for resisting extradition, whether viewed as Article 8 disproportionality or an abuse of process. Since the EMC had by now (since 16 February 2024) run for more than 20m, they were able to argue – based on A and Doga – that the Appellant should be discharged. In light of that viable argument, permission to appeal was granted by Murray J at an oral hearing on 17 October 2024. Evidence Ventilated in Previous Cases

17. It is common ground that this Court can properly have in mind evidence which was before the Court in the previous cases of A and Doga , and discussed in the judgments in those cases: cf. Dobrowolski v Poland [2023] EWHC 763 (Admin) at §§17-18; and Andrysiewicz v Poland [2024] EWHC 1399 (Admin) at §31. That includes the recorded descriptions of the judgment of the French Supreme Court (Cour de Cassation Criminal Division 17 March 2021, No. 20-84365) which was before the Divisional Court in A (see A at §§11, 32) and dealt with in Doga (see Doga at §16). It includes the recorded descriptions of the evidence of the French lawyers M Kempf ( A at §§9-10); M Pejoine ( A at §19vi); and M Arnaud ( A at §20; Doga at §§9-15, 29). It includes the recorded descriptions of the evidence about other extradition cases ( A at §§19iii-vii, 46; Doga at §18). On 1 April 2025, the CPS – “to comply with our duty of candour” – provided two documents which had been relied on in A and Doga . One was a letter from the Deputy State Prosecutor dated 4 August 2022 relied on in A (see A §§16-17; Doga §17). The other was the 28 March 2023 Further Information from the French Ministry of Justice relied on in Doga (see §§16, 29), relied on in the April 2025 Further Information in this case, and twice served in this case. A Sole Viable Point

18. I am entirely satisfied that the Qualifying Curfew point is the only viable point in the appeal. There is, in my judgment, no independent basis on which extradition in this case can be characterised as a disproportionate interference with Article 8 rights (to respect for private and family life) or an abuse of process. The Judge’s analysis on the case as it stood before her is unimpeachable. The Appellant, with appropriate candour of his own, had informed this Court that in the period after the Judge’s decision he and his former partner ended their relationship. I accept that, in an updated case-specific analysis of Article 8 proportionality, the fact of a long period spent on EMC can be a factor in the overall balancing exercise: see Bakai v Slovakia [2024] EWHC 1768 (Admin) at §§30, 32-34. But I am also satisfied that – absent the Qualifying Curfew point which prevailed in A and Doga – the appeal cannot possibly succeed. There is no freestanding abuse of process. There are features which can weigh in the Article 8 balance against extradition, or which can reduce the weight of the Article 8 public interest considerations in favour of extradition. The Appellant has a private and family life here. He is not a fugitive. He has no other convictions. He has had a long period on EMC. There are impacts and implications of extradition for him and for his family members. But the features which cumulatively weigh against extradition are decisively outweighed by the public interest factors which weigh in favour of it. If the A / Doga point fails, no other argument or combination of points can succeed. The Article 26/624 Mechanism

19. An important reference point for the legal analysis is the extradition framework relating to qualifying remand in custody. That framework is what would have been applicable to the Appellant’s case if, instead of conditional bail with an EMC, he had been remanded in custody. In that situation, there is an entitlement to a deduction, in which one day of detention counts as one day of time-served from the relevant sentence. The governing provisions are Article 624 of the Trade and Cooperation Agreement, which mirrors Article 26 of the Framework Decision 2002/584/JHA ( A at §28; Doga at §20). I will call this mechanism “Article 26/624”. It is a mechanism which has been strongly emphasised by the French authorities in the Ministry of Justice’s March 2023 further information ( Doga §16) and again in the Paris Prosecutor’s Office’s April 2025 further information. Under the Article 26/624 mechanism, the IJA has a duty to deduct from the relevant custodial sentence all relevant periods of “detention” which have arisen in conjunction with extradition. The governing provision within the French Code is Article 716-4[2] (§21 below). The EJA for its part has a duty to transmit information to the IJA about periods of extradition detention. This Article 26/624 mechanism squarely places the function of deduction on the IJA. Deprivation of Liberty

20. In order to discharge the Article 26/624 duty of deduction, it is necessary to ask whether there has been “detention”. That means a “deprivation of liberty”. A period in a prison remanded in custody is a deprivation of liberty. But some circumstances of house arrest can be sufficiently intrusive also to constitute a deprivation of liberty. In the leading relevant case of JZ v Prokuratura Rejonowa Lodz ( Case C-294/16 PPU), the Court of Justice of the European Union (CJEU) explained that “detention” in Article 26 of the Framework Decision has an “autonomous” meaning ( JZ at §37). The Article 26 deduction for time in “detention” was a minimum level of protection ( JZ at §55). It applies where the measure – viewed by reference to its type, duration, effect and manner of implementation – has constituted ( JZ at §§46-47) a “deprivation of liberty” rather than a “restriction of liberty”, which was “for the referring court to ascertain”. Deciding whether house arrest does constitute a deprivation of liberty requires an evaluative judgment, in the application of the “autonomous” meaning of “detention”. That evaluative judgment is one of the themes recorded in the 28 March 2023 Further Information ( Doga §16), by reference to a discussion in the French Supreme Court’s judgment of 17 March 2021. Article 716-4 of the French Code

21. The French Criminal Code (discussed in A at §31; and Doga at §11) provides within Article 716-4 for a qualifying period of “detention”, including (at [2]) where there has been a “deprivation of liberty” in the context of extradition. Here is Article 716-4 (the numbers in square brackets are mine): Article 716-4. [1] Where there has been a pre-trial detention at any stage of the proceedings, such detention shall be deducted in full from the length of the sentence to be imposed or, where appropriate, from the total length of the sentence to be served after conviction. The same shall apply in the case of pre-trial detention ordered in the context of proceedings for the same acts as those which gave rise to the conviction, if these proceedings were subsequently annulled. [2] The provisions of the preceding paragraph shall also apply to deprivation of liberty undergone in execution of a warrant for bringing in or arresting a person, to imprisonment undergone outside France in execution of a European arrest warrant or on the request for extradition. [3] Where there has been pre-trial detention at any stage of the proceedings, this detention shall also be deducted in full from the duration of the security period to which the sentence is attached, where applicable, notwithstanding the simultaneous execution of other prison sentences. “Detention” and ‘Exclusive Competence’ of the IJA

22. It would be open to an IJA to say, in the context of qualifying remand in custody and Article 26/624, that the domestic court as the IJA has a sole and exclusive competence and responsibility to make the relevant decision. The “referring court” in JZ was the French IJA. It was that French court – post extradition of the requested persons – which was needing to “ascertain” whether there was a deprivation of liberty constituting “detention” for the purposes of Article 26/624. An IJA could argue that there must always be an extradition surrender, so that it as the legally appropriate judicial institution can then discharge the function which belongs to it, and make the deduction for Qualifying Remand. The Ministry of Justice March 2023 further information filed in Doga , and the April 2025 further information in the present case, make clear that this is the position of the French authorities. The Article 26/624 deduction is described by the French Ministry of Justice as “a prerogative” of the French authorities, as the “State issuing” the ExAW (see Doga at §16).

23. Pausing there, the deduction in respect of a deprivation of liberty under the Article 26/624 mechanism (and Article 716-4[2] of the French Code) itself has (see §5 above): a who component (the French court); a when component (post-surrender); and a known what component (deprivation of liberty, applying the JZ test). There is no whether component, because the deduction involves a duty, not a discretion. Responsibilities of the EJA

24. The EJA has legal responsibilities of its own. Article 26/624 forms part of the extradition arrangement between the IJA (France) and the EJA (the UK). The Article 26/624 deduction is the post-extradition function of the IJA. And yet the requested person’s entitlement to have that deduction made can become a matter of direct concern for the EJA. The answer is the same one as was given by the Divisional Court in A at §39. The UK court as EJA itself has “an obligation not to act in such a way as to cause a disproportionate interference with the relevant ECHR rights of a person whose extradition is being sought”. The “question whether the Appellant has served his sentence” can be “directly relevant and necessary for the English court to consider in order to guard against it breaching its primary obligations to a person who is subject to an extradition request” (see A at §40).

25. So, where the requested person has been remanded in custody and in detention (deprived of their liberty), the EJA’s assessment of Article 8 proportionality may have regard to the period which left to be served when Qualifying Remand is deducted: see Dobrowolski v Poland [2023] EWHC 763 (Admin) at §§7-8. That does not mean an appeal will succeed simply because only a period of a few weeks remains to be served; nor does it mean that the question for the extradition court becomes whether the requested person “has or has not served enough of” the sentence: see Molik v Poland [2020] EWHC 2836 (Admin) at §11. It does mean, however, that there is a bright-line once the period of qualifying remand in custody (detention) reaches the same duration as the sentence of imprisonment in respect of which extradition is sought. In that situation, for the purposes of the Article 26/624, the requested person will be entitled to have their sentence recognised by the IJA as being served in full. Where that bright-line point is imminent, the Court can make a deferred discharge order: Molik at §18. Where the bright-line has already been crossed, the answer is to discharge the requested person. That is so whether or not the IJA agrees to withdraw the ExAW. It is so whether the IJA maintains that extradition should take place so that it can exercise its “prerogative” under the Article 26/614 mechanism.

26. As the Divisional Court explained in Newman v Poland [2012] EWHC 2931 at §19: it would be an abuse of the process of this court and the court below to continue to seek the extradition of a person who has, in effect, served his custodial sentence in full, as a result of the application of Article 26, solely for the purpose of enabling the management decision for the discharge of the appellant to be taken in Poland [and] it would be a disproportionate interference with the appellant's right to a private and/or family life under Article 8 to extradite the appellant for the same purpose. These EMCs are not a Deprivation of Liberty

27. This case is not about Article 26/624. It is not about detention. It is not about deprivation of liberty. The CJEU ruled in JZ that even the 9 hour EMC which featured in that case could not meet the “autonomous” Article 26/624 test of constituting a “deprivation of liberty” and thus “detention” ( JZ at §54). Nor can the 5 hour EMC in the present case. Nor could 5½ hour EMC in A . Nor could the 5 hour EMC in Doga . Nor could the EMC arrangements with which the French appellate courts were concerned in the 28 March 2023 judgment of the French Supreme Court. None of those EMCs were a deprivation of liberty. Restriction of Liberty

28. Qualifying Curfew is not the operation of the Article 26/624 duty which is triggered by detention (deprivation of liberty). It belongs to a different place on the legal map. The position was also explained by the CJEU in JZ . A requested person’s Art 26/624 entitlement to a deduction of Qualifying Remand for detention (deprivation of liberty) under Article 26/624 is “a minimum level of protection” ( JZ at §55). But it remains open to the domestic law of an IJA to go further and allow deduction for a “restriction of liberty” which it recognises as warranting a deduction. As the Court said in JZ at §55: Article 26(1) … cannot be interpreted … as preventing the judicial authority of the Member State that issued that arrest warrant from being able, on the basis of domestic law alone, to deduct from the total period of detention which the person concerned would have to serve in that Member State all or part of the period during which that person was subject, in the executing Member State, to measures involving not a deprivation of liberty but a restriction of it. This, then, is the location on the legal map for the French “domestic law alone” which does indeed involve a deduction for a restriction of liberty. That is the Qualifying Curfew under the French Criminal Code. JZ §55 (described as “point 55”), which is another key theme recorded in the 28 March 2023 further information from the French Ministry of Justice, on which reliance was placed in Doga and is placed in this case. Article 142-11 of the French Code

29. This brings us to Article 142-11 of the French Code of Criminal Procedure. It has to be read with Article 716-4 (§21 above). Consistently with JZ at §55, Article 142-11 allows a restriction of liberty to operate as a Qualifying Curfew. The test is whether the restriction of liberty constitutes EMHA (“electronically monitored house arrest”). Here is Article 142-11 (see too A at §30; Doga at §11): Article 142-11. An electronically monitored house arrest is assimilated to pre-trial detention for the purpose of counting its deduction from a custodial sentence, in accordance with Article 716-4. The French Appellate Courts

30. That, in turn, brings us to the proceedings which led to the judgment of the French Supreme Court (28 March 2023). The circumstances are all set out in A at §32. There were two requested persons extradited from the UK on 23 May 2019. They were on 7 hour EMC in the UK from 20 March 2018 to 23 May 2019, “restricting their liberty”. The Paris Correctional Court allowed their claim and decided that the period should be deducted (as EMHA under Article 142-11 of the French Code). The public prosecutor appealed unsuccessfully to the Paris Court of Appeal, and then unsuccessfully to the Supreme Court.

31. The position of the Paris Court of Appeal is clearly described in the French Ministry of Justice’s 28 March 2023 further information (emphasis added): The Paris Court of Appeal analysed the period of the ‘curfew’ as a measure of electronically monitored house arrest under French law, after analysing the substance of the measure in detail, in particular the obligations and restrictions imposed on the individuals, and after noting the absence, in French law, of a distinction in the minimum daily duration of the obligation to remain at home imposed on the person placed under electronically monitored house arrest. The Court of Appeal concluded from this analysis that the duration of the measures imposed in Great Britain, insofar as they were similar to those that would have been imposed in France under electronically monitored house arrest, had to be deducted from the duration of the prison sentence subsequently handed down in France. The Court of Appeal … rejected the appeal, stating that … even if such a “curfew” measure is not deductable under UK law from the prison sentence imposed because of the duration of the curfew imposed daily not exceeding nine hours, in view of the information produced on the measure imposed , in particular by the authorities of the United Kingdom (executing State), “because of its type, duration, effects and methods of execution, [it] corresponds in France to an [EMHA] measure ”, which is treated as pre-trial detention for its duration to be deducted in full against a custodial sentence (Article 142-11 of French criminal procedure law), irrespective of whether the pre-trial detention measure is carried out in France or whether it is imposed in the form of pre-trial detention in execution of a European arrest warrant, in accordance with the provisions of Article 716-4 of French criminal procedure law…

32. That clear decision of the Paris Court of Appeal was upheld by the Supreme Court. The French Ministry of Justice says this (emphasis added): the Criminal Division of the French Supreme Court (‘Cour de cassation’) dismissed the appeal, holding that the Court of Appeal , in using unfettered discretion in its interpretation of the obligations imposed on the person concerned in the context of this measure and after a detailed analysis of its content, and in finding , “on grounds that are not inadequate or are contradictory'”, ·that it should be treated as a measure of house arrest … under electronic surveillance , the duration of which should be deducted from that of the prison sentence imposed in France, under the conditions provided for in Article 142-11 of French criminal procedure law (‘Code de procedure penale’), had justified its decision without incurring the alleged prejudice. The French Supreme Court’s Review Role

33. The Respondent has emphasised that the French Supreme Court does not rule on the facts, but limits itself to the question whether “sufficient reasoning” has been given, and that reasons are “free from contradiction”, and that “the Court of Appeal had justified its decision without incurring the alleged prejudice”. This is reflected in the description (§32 above). I accept it. It was also the position in A and in Doga . It means the focus is on what was said by the Paris Court of Appeal (§31 above). The Supreme Court’s decision is significant for the appellate court’s decision whose legitimacy it reviewed and upheld. Qualifying Curfew and ‘Exclusive Competence’ of the IJA

34. In both A and Doga the French authorities argued that the identification of Article 142-11 EMHA was a question for the “competence” of the French court following an extradition surrender. It was recognised that “ultimately” only the French court “would be competent to rule on the application of French law to the [requested person]’s case” ( A at §32). The French authorities said that Qualifying Remand under Article 142-11 was a question of “unfettered discretion”, with which the EJA (the UK) should not become involved at all. But that argument did not prevail in those cases. Those Courts made three key points. First, it was a “primary obligation” of the EJA to decide whether extradition would be Article 8 disproportionate or an abuse of process ( A §39; Doga §32). Secondly, there was convincing evidence adduced on behalf of the requested persons: from the three French lawyers ( A at §§9, 20; Doga at §§9, 12-15), from the French Supreme Court decision ( A at §§11, 32; Doga §§14, 16), and from references to other cases ( A at §19; Doga §18). Thirdly, there was an evidential vacuum on the part of the IJA, who had not answered the requested persons’ evidence about the French provision ( A at §33; Doga at §§29-33); including in relying on an 4 August 2022 letter ( A at §16; Doga at §17) and the 28 March 2023 Ministry of Justice memorandum ( Doga §16). EMHA is an Evaluative Question

35. The French Criminal Code is recognised as involving an evaluative question whether there has been EMHA. Mr Swain emphasises the references, found within the 28 March 2023 document from the French Ministry of Justice relied on in Doga , to a “discretion” which is “unfettered” ( Doga §16). He accepted in his oral submissions that what this language must mean is a concrete fact-specific evaluative judgment asking whether the measure in question does or does not constitute an EMHA. Article 142-11 is a Duty

36. That evaluative question triggers a duty. If the EMHA question is answered in the affirmative, there must then in French law be a one-for-one deduction. This is clear from the French Code. It is not undermined by any of the evidence. It has not been disputed. It was spelled out by Farbey J in Doga at §4, when she said (emphasis added): It is not in dispute … that, as a matter of French law , one day under an electronically monitored house arrest (“EMHA”) must be treated as one day of imprisonment, which must be deducted from the sentence of a person extradited from the United Kingdom. The dispute before me is whether the period of EMC should be treated as a corresponding period of EMHA under French law.

37. Where there is assessed to be EMHA, the one-for-one deduction will follow. And where the days on EMHA exceed the length of the prison sentence, the sentence is served. It is extinguished. Qualifying Remand is not therefore like “early release”, where an individual may be released on licence conditions, during the remainder of their prison sentence. That distinction, and the existence of the duty, distinguish the present context from the current controversy about a foreign early release discretion (as to which, see Galicki v Poland [2025] EWHC 811 (Admin) at §§21-26). This explains the logical consistency in Farbey J’s decisions about French Qualifying Remand ( Doga ) and about Polish early release (see Dablewski v Poland [2024] EWHC 957 (Admin) at §50). The Courts in A and Doga saw the present issue as being concerned with whether a requested person has served their sentence ( A at §§4-42; Doga at §22). Although that was by reason of a Qualifying Curfew (restriction of liberty) under foreign domestic law, it was approached in the same way as qualifying remand in custody (deprivation of liberty) under the Article 26/624 mechanism and Newman , in a “very clear cut case” ( A at §39). Very Clear Cut

38. Mr Swain for the IJA reminds me that the extradition court will not generally get involved in contested questions as to the correct interpretation of provisions of the domestic law of an IJA. An example of this is the line of cases on limitations periods: see Troka v Albania [2021] EWHC 3424 (Admin) at §18. But in the present context, the Divisional Court answered that point in A , pointing at §39 to the “necessary proviso” where the position is “very clear cut”.

39. The position will be very different if the requested person’s evidence is unclear or unsatisfactory, or if the IJA has put forward a positive case. That was the case in relation to Hungarian domestic law and Qualifying Curfew in Vidak v Hungary [2023] EWHC 1108 at §§39-40. There, Chamberlain J said this: There is clear evidence from the respondent judicial authority that no period beyond the six months served in custody would fall to be deducted… This case is therefore quite different from A v France …, where the respondent judicial authority had said nothing about whether the appellant had served his sentence. Here, the respondent judicial authority has said something very clear about that: he has not. Does Dr Kádár’s evidence enable me to reach a contrary view? The terms of his evidence suggest a negative answer. Dr Kádár himself considers that “not all types of criminal supervision are deducted from the sentence to be served” and that the situation is “not clear cut”. Although he describes one case in which the court was persuaded to take into account time served on an equivalent curfew, he properly adds that he cannot say whether this case “can be regarded as standard practice” and expresses a particular doubt about whether the procedural device used in the one case of which he is aware would be available here. The evidence is not sufficiently clear to enable me to reach a finding about Hungarian law that is directly contrary to the express view of the Hungarian judicial authority. The Evidence

40. Returning to the four components (§5 above), I have the same who (the French court), when (post-extradition) and what (whether the EMC is evaluated to constitute EMHA) as did the Courts in A and Doga . The critical question is whether . On that question, what I have from the Paris Prosecutor’s Office in the April 2025 further information is really two things. First, I am told that: it is not possible to predict at this stage. Secondly, I am told (candidly): Unfortunately, we have no examples of decisions in which an individual subject to a curfew with electronic surveillance did not have each day subject to this curfew deducted from the sentence handed down by the French court.

41. Alongside that candid admission, I have evidence of all of the following: i) Two Persons (2019-2021). These are the two requested persons who were surrendered to the French authorities on 23 May 2019. They had each been on 7 hour EMC in the UK from 29 March 2018 to 23 May 2019. The Paris Correctional Court allowed their claim for deductions under Article 142-11 of the French Criminal Code. The prosecutor appealed, but the Paris Court of Appeal upheld the deductions. The prosecutor appealed, but the Supreme Court on 17 March 2021 upheld the Paris Court of Appeal. As I have explained, the finding of the Paris Court of Appeal was that the EMC “should be assimilated, in French law, to a measure of house arrest under the terms of the law” and “treated as electronically monitored house arrest, the duration of which is deductible from that of the prison sentence imposed, in accordance with the conditions of Article 142-11 of the Code of Criminal Procedure”. See A at §32 and see §31 above. These were the extradition cases which the Paris Prosecutor’s Office appealed from the Paris Correctional Court to the Paris Court of Appeal and again to the Supreme Court. ii) M Pejoine (February 2020). Meanwhile, in a report dated 5 February 2020 for the case of France v Miller , the statement of M Philippe Pejoine said: “Under French law, the time served on tag is equivalent to a custody or a remand measure and does actually count in full against any custodial sentence”. See A at §19vi. iii) Mr Miller (2020). Then in France v Miller itself, District Judge Zani at Westminster Magistrates Court discharged Mr Miller. Mr Miller was treated as having served his sentence by reason of his 4 hour EMC. See A at §19iv and vi. iv) Mr Peci (April 2022). Next, in France v Daniel Peci , District Judge Zani at Westminster Magistrates Court gave a judgment on 19 April 2022. Mr Peci’s was an 8 hour EMC later reduced to a 6 hour EMC. DJ Zani’s judgment recorded (at §72) that “counsel for the IJA ‘acknowledged that the French authorities have agreed that [Mr Peci] will be given credit for the entire period that he has abided by his curfew imposed as part of his bail conditions.” See A at §19iii; Doga at §18. v) Mr Varey (May 2022). English lawyer Karen Todner (GSC Law) has described a court order in the Administrative Court (13 May 2022) in Frank Varey v Rennes Court of Appeal (France) , quashing the order for extradition order, the ExAW having been withdrawn because Mr Varey “on tag” had “served the entirety of his sentence”. See A at §19vii. vi) Mr Esmaili (July 2022). The solicitor for the requested person in the appeal to the Administrative Court in Esmaili v France stated on 12 July 2022 that the ExAW had been withdrawn because Mr Esmaili was “deemed to have served the entirety of his sentence … by dint of him being subject to bail with an electronically monitored curfew of between 4-6 hours for a period in excess of the sentence”. See A at §6. vii) M Kempf (July 2022). French lawyer M Thibaut Kempf said in a statement dated 25 July 2022 that of 1,512 days of A’s 5½hr EMC that: “As a matter of French law, each of these days is to be treated as a whole day served of his French sentence”. See A at §9. viii) Ms Todner (November 2022). English lawyer Karen Todner (GSC Law) said in a witness statement dated 30 November 2022 that Mr Miller and Mr Varey were among nine requested persons whom she had represented, there being seven others, “all of [whom] … were given their time on tag in the UK as part of their sentence”. See A at §19v. ix) M Arnaud (December 2022). French lawyer M Etienne Arnaud said in a witness statement lodged on 2 December 2022 that Articles 142-11 and 716-4 “mean that under French law, days spent by a person on an electronically monitored curfew as one of their conditions of bail during extradition proceedings relating to a French prison sentence, will be counted as days served of that sentence. For these purposes there is no required minimum period of the daily curfew”. See A at §20. x) M Arnaud (July 2023). M Arnaud said in a report dated 4 July 2023 that: “In my opinion and based on those decisions from the first and second instance courts, which eventually led to the 2021 decision [of the Cour de Cassation], even though Mr Doga’s indoors hours [midnight to 5am] are slightly shorter, I believe the conditions of his curfew would meet the criteria for an EMHA”. See Doga at §14. xi) Mme D’Harcourt (April 2025). French lawyer Mme Marie D’Harcourt says in her Legal Opinion in this case (2 April 2025): (1) Articles 142-11 and 716-4 of the French Code of Criminal Procedure are up to date applicable French law dealing with the effect of an EMHA. (2) There is no required minimum period of daily curfew. (3) She agrees with M Arnaud’s statement about the decision of the Cour de Cassation dated 17 March 2021. (4) Her opinion is that the 17th March 2021 decision of the Cour de Cassation clearly ruled that, under French law, English EMC should be regarded as French EMHA as defined under articles 142-11 and 716-4 which should be so regardless of the details and modalities of the curfew. (5) Her opinion that in application of Articles 142-11 and 716-4 and case law, the Appellant in this case would be seen as having effectively served his sentence, regardless of the number of hours of his curfew.

42. In A , the Divisional Court said in A (at §41): We … accept without reservation that, had the Respondent provided us with material information that went to undermine the case that the Appellant seeks to run, that information should and would have been given the close attention and respect that flows from the obligation of mutual trust underpinning the extradition arrangements; but there is no such information here either as to the proper interpretation of French law, or the criteria that the French court would apply or how such criteria would affect the outcome of any determination of the length of sentence that the Appellant has served. As to the three French lawyers, the Court said (at §§44-45): We reject the Respondent’s submission that the evidence is not unequivocal. It includes the evidence of three French lawyers, M Kempf, M Pejoine and M Arnaud, each of which is unequivocal in its terms. The combined effect of their evidence might have been diluted if the Respondent had provided any evidence either to contradict their expressions of opinion or to explain the criteria that the French court would apply so as to lead to a contrary conclusion. Had such evidence been provided by the Respondent, it would have been treated with the respect that is attributable as a result of the mutual trust and confidence that exists in the context of extradition arrangements… But in the absence of any reasoned opposition, there is no sound basis for rejecting their opinions, either singly or cumulatively. As to the evidence about other cases, the Court said (at §46): While we accept that the facts of the various cases about which Mr Cooper acquired evidence are different, it may be noted that the package of measures to which the Appellant was subject in England bears some comparison with the facts of the Cour de Cassation decision: in addition to the electronic monitoring of the curfew, the Appellant had to surrender his passport and identify card, was forbidden to obtain travel documents and was not to go to any international travel hub, including any international train station. The duration of his nightly curfew was initially 5½ hours, which bears comparison with the facts of Mr Esmaili's case (4-6 hours), and the cases of Mr Peci (6 hours) and Mr Miller (4 hours). Therefore, though comparison with the facts of other cases would not on its own have been sufficient, the exercise provides some support for the opinions expressed by the three French lawyers. We therefore reject the Respondent's submission that no regard at all should be had to the facts of other cases. It may also be noted that, as Mr Keith submitted in reply, the CPS has been aware of the reasons why the EAWs have been withdrawn in the other cases but, on behalf of the Respondent, has chosen neither to engage with those reasons nor to give disclosure in relation to those or other similar cases – the evidence of Mrs Todner providing strong support for an inference that there are others of which the CPS would be aware.

43. Farbey J said this in Doga (at §§29-35): As in the case of A , the respondent does not challenge the way in which M Arnaud applies French law to the appellant’s case. The March 2023 document from the Ministry of Justice does not deal with the appellant’s case in any individualised manner but amounts to a general statement of the law which appears … to be all of apiece with M Arnaud's general statement of the applicable law. As in A , the respondent does not provide any information about the criteria that would be applied by the Lyon Court of Appeal in determining whether the period of EMC would count towards the appellant’s sentence and does not give any indication about how the appellant’s bail conditions would be treated. This is not a promising baseline from which to invite the court to take a different approach to the Divisional Court in A . I have been provided with no reason to distinguish A on any point of law. I accept that each case turns on its facts and that there may be some theoretical reason on the facts why the appellant’s EMC would not be deducted from time to be served in France. I have, however, been provided with no evidence as to why that may happen… [T]here is no particularised evidence from the respondent about the appellant's personal situation… The respondent has placed all the eggs in one basket, namely that the French court is alone competent to assess whether time on EMC should be deducted from the outstanding period of the appellant's prison sentence as recorded in the EAW. For the reasons given in A , that submission cannot succeed. As A makes plain, this court has a primary duty to ensure that the appellant's extradition would be compatible with his Convention rights. It will perform that duty by considering the evidence before it. In the absence of reasoned opposition to the evidence on which the appellant relies, the question of trust in what a requesting state says about a certain state of affairs does not arise. The principle of mutual trust and confidence does not have purchase when there is an absence of any evidence from the requesting state. In the absence of any reasoned opposition to M Arnaud’s evidence, I accept his opinion that the conditions of the appellant's curfew would meet the criteria for EMHA. I am satisfied that the appellant has effectively served his sentence in full and … the appellant’s extradition would breach his Article 8 rights… As in the case of A , I would have reached the same conclusion on the basis of abuse of process. This Case

44. Mr Swain has argued that the present case is distinguishable from A and Doga . He says EMHA is an evaluative judgment informed by all the features of the EMC measure. He says the Appellant has not demonstrated that the Appellant would receive an Article 142-11 deduction of Qualifying Curfew. He emphasises that the French Supreme Court was upholding as lawful a concrete factual evaluation by the Paris Court of Appeal. He says there is no sound basis for saying, as Mme D-Harcourt does, that any EMC of any duration would necessarily constitute EMHA. The Respondent’s April 2025 further information concedes that the points it makes were addressed in even greater detail in the March 2023 Ministry of Justice which was insufficient for Farbey J in Doga . It says the prosecutor would first make a decision and then, if adverse and challenged, the decision-maker would be a French judge. That is the who (the French court) and the when (post-extradition). The what remains whether the EMC is evaluated to constitute EMHA. These are all the same as they were in A and Doga . The point is repeated by the Respondent that the French Supreme Court was not remaking the decision, but reviewing the legal legitimacy of the decision of the Paris Court of Appeal. That is not a new point.

45. The critical question remains the whether component (§5 above). The significance of the French Supreme Court lies in the fact of it having upheld the legal legitimacy of the clear conclusion of the Paris Court of Appeal (§30 above) on the facts (§41(i) above). I have the evidence of a series of French lawyers. I have a series of previous examples. They are all one way (§41 above). Then I have the fact that the Respondent through the Paris Prosecutor’s Office accepts that it cannot point to a single case in which the EMC has not constituted EMHA in applying Article 142-11 of the Code. The claim made in the April 2025 further information is that this absence of a single example is “of no consequence”, because of the IJA’s undisturbed “sovereign” function under the Article 26/624 mechanism. I have addressed the Article 26/624 mechanism, and have explained this Court’s own responsibilities (§§24-26 above). All of that was considered and addressed by the Divisional Court in A , back in December 2022. The Respondent continues to emphasise that the Qualifying Remand decision-maker is the French criminal court, and that the decision would be made after extradition has taken place. None of the points being made are new. I accept those points. They were made and considered in A and Doga .

46. The essential problem can be seen by taking the four components which I identified at the start (see §5 above). The Respondent continues to seek to answer a whether question by making and re-emphasising points which are about who and when . Ms Grudzinska for the Appellant points out that the analysis – of the all-important whether question – identified in A and reinforced in Doga (and now supported by Mme D’Harcourt) has not been answered by the Respondent’s new April 2025 further information, its refiled previous March 2023 further information, or the submissions that have been advanced orally or in writing. I agree. Conclusion

47. In all those circumstances and for all those reasons, the appeal succeeds. In the exercise of this Court’s statutory responsibilities, I find that the Appellant’s prospects of Qualifying Curfew as EMHA under the French Code based on his 5 hour EMC in the 37 months since 16 April 2022 are so irresistibly strong, on the evidence, that it would be a breach of the Appellant’s Article 8 rights to extradite him in connection with his 20 month French sentence. Had it been necessary to rely on the residual jurisdiction founded on abuse of process, I would have done so. This is in substance the same conclusion as was reached in A (§§48-49) and again in Doga (§§34-35). I will direct the Appellant’s discharge. Having circulated this judgment in draft, I will be able to deal here with the Court’s order and any consequential matter arising. PART 3. THE RESPONDENT’S REQUEST

48. The Respondent requested two things. First, that I should defer handing down the original judgment to permit representations on process and substance in light of the judgment of the Supreme Court in Andrysiewicz [2025] UKSC 23 (“SC”). As I said in Part 1 (§1 above), I agreed to that request. Second, that I should revisit the analysis in the original judgment (Part 2) and reverse the outcome of the case. That means the Appellant would be extradited after all, so that the French authorities could make their decision on whether his 5-hour EMC is or is not EMHA under the Code. Whether to accede to that request, and what the consequence is, are the subject of the remaining paragraphs below. I have decided not to change my decision. Andrysiewicz

49. In Andrysiewicz in the High Court (“HC”), Swift J had declined to follow what I will call the Chmura line of cases (see HC §34, SC §§22, 29). Swift J saw a general contradiction, in the forming by the EJA of a judicial perception of good prospects of early release (see HC §29, SC §24). His solution was a nuanced one. He allowed for a recognition of the fact of early release but being given little weight; and he allowed for the EJA to embark on a predictive task in a “rare case” (see HC §§34, 36, and SC §27). Swift J’s analysis was vindicated and endorsed (SC §76), including as to his description of a general contradiction (SC §72), but also as to the room for a “rare case” (§§79-80, 82). The issues concerned Polish Early Release provisions (SC §2), but the analysis of principle was intended by the Supreme Court to be read across to other countries’ early release provisions (SC §66). As it happens, both parties in Andrysiewicz addressed the Supreme Court about A and Doga and French Qualifying Remand within their written submissions, but the Court’s focus understandably remained on early release, in Poland and elsewhere. The Request

50. Mr Swain for the Respondent recognises that the Supreme Court in Andrysiewicz did not decide any question relating to Qualifying Curfew. He accepts that French Qualifying Curfew involves a question of evaluative judgment which triggers a duty (see §§35-36 above). It does not involve a discretion or multiple discretions (cf. SC at §§52-53). He accepts that a question of evaluative judgment – which would arise for the French authorities – could arise as a question to be addressed by the EJA. An example, which was canvassed at the reconvened hearing, would be this. Suppose that – instead of being remanded in custody at HMP Wandsworth – a requested person were on a 16-hour EMC. There is an evaluative test applicable to whether that would constitute a deprivation of liberty (see §20 above). It belongs to the French authorities under the Article 26/624 mechanism (see §19 above). But the EJA could answer that evaluative question, so as to apply the Molik / Newman bright line (§§25-26 above): cf. AP v SSHD [2010] UKSC 24 [2011] 2 AC 1 . Mr Swain accepted that the EJA would be obliged to answer that evaluative question. He emphasises that it is a question under the Trade and Cooperation Agreement (§19 above), rather than a provision under domestic French law (§28 above). Next, Mr Swain accepts that French Qualifying Curfew does not involve any licence period or probation period, unlike early release. That means the EJA – if it came to an informed view on evidence – would not be preventing any evaluative decision by the requesting state authorities whose consequence would be a period on licence or probation there. All of this is accepted.

51. Nevertheless, says Mr Swain, there is a sound analogy between Polish Early Release in Andrysiewicz and French Qualifying Curfew in A , Doga and the present case. They each involve a provision of foreign national law. They each involve evaluative judgment. They each risk contradiction, speculation and usurpation. So, this Court should now depart from the A and Doga line of cases on French Qualifying Curfew, just as Swift J did with the Chmura line of cases on Polish Early Release. In doing so, the outcome of the present case should be reversed and the appeal dismissed. That is what I am being requested to decide and that is the outcome at which I am invited to arrive. However, I am unable to accede to that request. There are two independent reasons. Injustice

52. I do not think that allowing this line of argument promotes the interests of justice. I think it would be contrary to the interests of justice. Mr Swain says I can rewrite my judgment, where it is in the interests of justice to do so. He cited as relevant authority the case of Re L [2013] UKSC 8 [2013] 1 WLR 634 at §27, where it is said that in such a situation “the overriding objective must be to deal with the case justly”. He invited me to pose that question and I have done so. I do not think acceding to the new invitation would be dealing with the case justly. It would be different if there were a new appellate decision which established a new proposition and effectively answered the issues in the case. That is not what has happened.

53. In this case, the justice of the case starts from the following position. The judgment of Swift J in Andrysiewicz speaks for itself. It was available to the Respondent. The Respondent even cited Swift J’s judgment. It relied on the judgment in support of a general point. It was the same point made in the Troka line of cases. That general point had been addressed in A and it was addressed again by me (see §38 above). That was the point made by reference to Swift J’s judgment. At no stage did the Respondent seek to argue that there was an analogy between Polish Early Release in Andrysiewicz and French Qualifying Curfew in A and Doga and the present case. Mr Swain could have advanced the argument that there is such an analogy. That is what he wants to do now. He could have argued that Swift J’s judgment on Polish Early Release should be followed for French Qualifying Curfew. He did not do so. What has really happened is that the Supreme Court has now endorsed Swift J’s judgment. That gives full authoritative support for the analysis in that judgment. It is no longer open to this Court to follow the Chmura line of cases. But I have not done so. And, as Mr Swain accepts, the Supreme Court has not said anything about Qualifying Curfew. Nor has it said anything about whether there is, or is not, any analogy between early release and qualifying curfew. Yet that is what Mr Swain now wants to argue. It was always open to him to make that argument. Where a judgment could have been relied on in making an available argument, but it was not, I cannot see how an appellate endorsement of that previously available judgment should then become a good reason to reopen a case; still less a case which has been fully argued; and after the Court’s judgment has been written and distributed. I think that would be an unfair, opportunistic, second bite at the cherry. It would be an injustice. Applying Mr Swain’s authority of Re L , I would decline his request without more. If a French extraditing authority wants to run a new argument, they will have to do so in a future case. Very Clear-Cut

54. There is a second and freestanding problem. It arises, independently of whether there is or is not a sound analogy between Polish Early Release and French Qualifying Remand. I will assume I am wrong about injustice. And I will suppose that Mr Swain were right about his new analogy. Where would the suggested analogy lead, if it is right? I have explained (§49 above) that it stands as an authoritatively recognised general contradiction (see SC §§24, 72) for an EJA both (a) to recognise that a decision belongs to the requesting state authorities under their domestic law and yet (b) to arrive at a judicial perception of the requested person’s prospects. Pausing there, it is not always a contradiction; or not a universally fatal contradiction. A statutory example, where Parliament requires an EJA to arrive at its judicial perception on a question clearly belonging to the requesting state authorities, is found in s.21 A(3)(c) of the Extradition Act 2003 (less coercive measures). More relevantly, the example endorsed by the Supreme Court itself is Swift J’s “rare case” involving early release (SC at §§79-80).

55. In relation to French Qualifying Curfew, the Divisional Court in A was already looking – as its “necessary proviso” – at whether the evidential picture was “very clear cut” (§38 above). I have contrasted the case of Vidak . That is about Hungarian Qualifying Curfew, where the evidence was disputed and not clear cut (see §39 above). Mr Swain says, on the basis of his suggested analogy between Polish Early Release provisions in Andrysiewicz and French Qualifying Curfew provisions in the present case, that this would be the relevant equivalent of a “rare case” (based on SC §§79-80): [The] exceptional circumstances in which a court in this jurisdiction would embark on the task of predicting the approach of a [French] court to [Qualifying Curfew] … [are] confined to cases where there is agreed or uncontested evidence sufficient to demonstrate an overwhelming probability … that the requested person would be released … To explain that formulation, Mr Swain accepts that there are no relevant probation periods or licence conditions. He also accepts that, if the Appellant’s EMC were to constitute EMHA under Article 142-11 of the Code as an evaluative question (§§29, 35 above), then the time served entitlement would be to immediate unconditional release.

56. I have answered the “rare case” question. Ms Grudzinska submits, and Mr Swain accepts, that my finding that the Appellant’s prospects are “so irresistibly strong on the evidence” (§47 above) meets the threshold of “evidence sufficient to demonstrate an overwhelming probability” (SC §80). Mr Swain also accepts that all of the evidence which I have identified at §41(i) to §41(x) above stands as “uncontested evidence”. That is because the facts of the individual examples are not contested, and the evidence of the lawyers (M Pejoine, M Kempf and M Arnaud) was evaluated and accepted by the Courts in the previous cases of A and Doga . That body of evidence has not been “contested” in this case. And that body of evidence is the underpinning of my finding. What I have found is that the prospects for the Appellant with his 5-hour EMC are “so irresistibly strong”, in just the same way as the 5½ hour EMC in A was “very clear cut”, and as was the 5 hour EMC in Doga . I have explained the significance of the French Supreme Court (§45). I have described the “series of previous examples”, which are “all one way”. I have described the series of French lawyers (§45). I have described the position, adding “(and now supported by Mme D’Harcourt)” (§46). Those brackets – which Mr Swain very fairly acknowledged – were deliberate.

57. The only “contested” evidence was an aspect of what Mme D’Harcourt said about time served under the Code “regardless of the details and modalities of the curfew” and “regardless of the number of hours of his curfew” (see §41(xi)(4) and (5) above). I was careful to record that the Respondent had contested that “any EMC of any duration would necessarily constitute EMHA” (see §44 above). I have not found that it would. I have found that the Appellant’s 5-hour EMC makes his prospects “so irresistibly strong” when put alongside A and Doga and the evidence discussed, and the countless concrete examples of comparable EMCs. That is the evidence which, as is accepted by the Respondent, was not “contested” evidence in this case before me.

58. For these reasons, I agree with Ms Grudzinska that nothing turns on the correctness of what I had said about early release cases being different because early release involves discretion and it involves release on licence (see §37 above). Whether that was correct – Ms Grudzinska says it is and Mr Swain had not disputed the point previously – can await a case in which it matters, and where it has fairly been raised. In this case, I can for the time being assume in the Respondent’s favour that it were wrong. I can assume that it is sufficient that there is an evaluative “judgment” applying a domestic French Code criterion (cf. SC at §46). I can assume in the Respondent’s favour that there is a sound analogy between Polish Early Release and French Qualifying Curfew. I can assume that the feature of release on licence or probation in an Early Release case is not a key ingredient of Andrysiewicz . Making all those assumptions for now, I am still left with the body of evidence which involves the “very clear cut case” ( A at §39), where there is the “overwhelming probability” of release based on Qualifying Curfew, based on the “uncontested evidence” (SC at §80). I add this footnote. These observations provide another route for explaining how the two decisions of Farbey J to which I referred (§37 above) fit together: one in 2024 ( Dablewski ), following Swift J in Andrysiewicz as to Polish Early Release; and the other in 2023 ( Doga ), following the Divisional Court in A as to French Qualifying Curfew. The present case, as I have explained, is a “very clear cut” case. There is uncontested evidence sufficient to demonstrate overwhelming probability (SC at §80). The Appellant is entitled to discharge in light of his 5 hour EMC, in exactly the same way was the requested person with his 5½ hour EMC in A and the requested person with his 5 hour EMC in Doga . Outcome

59. And so for all these reasons, the judgment which I was poised to hand down on 13 June 2025 (Part 2) stands, after the resolution of the early release controversy (§§37, 49 above). I decline the Respondent’s invitation to reverse the outcome. The appeal succeeds. The Appellant will be discharged. In these updated circumstances, I can finally return (see §47 above) to any consequential matter arising. In light of the terms of the judgment as now finalised, Counsel are agreed that I should order as follows, as I do: (1) the application to adduce fresh evidence is granted; (2) the appeal in respect of Article 8 is allowed; (3) the Order for extradition is quashed; (4) the Appellant shall be discharged in relation to these proceedings; and (5) there shall be an assessment of the Appellant’s publicly funded costs.